Tuesday, 4 May 2021

Concluding a Treaty - I. Instruments of Ratification or Denunciation

States make agreements with each other every day. These range from the almost bafflingly mundane [1] to treaties which have reshaped the global order [2]. But how does this work in practice?

Well, as with everything it is mostly simple with lots of exceptions and corner cases. The fundamental idea is that states [3][4] make agreements and that these then bind them [5]. In a change from my usual style, we will start by considering a simple - and quite boring - example and then move on to the spectacular display of the British Constitution moment!

Effective on Signature

The simplest examples of these are agreements [6] which, when signed, take effect immediately. These are comparatively rare in the modern world, and usually restricted to very technical or low impact things. A very recent example in the UK would be the Agreement between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland regarding Mutual Assistance in Customs Matters between their Customs Administrations [7]. This agreement provides (in part) at Article 14


Entry into Force and Termination

1. This Agreement shall enter into force on the first day of the month following signature. 


There does not appear to be, technically, any great need for any treaty to be ratified, but the approach of binding a state on signature has two obvious downsides. The first is that it does not provide a window (however long that might be) for the state in question to implement the agreement in domestic law [8] . The second, which is probably the more significant in the modern political world is that it does not provide for any form of Parliamentary  (or equivalent) approval.

A similar form of agreement to this is an agreement by an exchange of notes. Here, two (or more) states exchange formal letters containing identical text of some agreement, and by that exchange become bound. This is often used for highly technical changes to existing agreements, or to correct simple errors. One example is the Exchange of Notes to amend the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America for the Sharing of Visa, Immigration, and Nationality Information, done at Queenstown on 18 April 2013, as amended by an Exchange of Notes on 28 and 29 September 2016 [9]. 

Despite the highly prolix name, this is actually worth a quick look by the curious because these letters are still written in the highly formal diplomatic style, e.g. the UK's note ends with

The Foreign, Commonwealth and Development Office avails itself of the opportunity to renew to the Embassy of the United States of America the assurances of its highest consideration.

This lack of any confirmatory process to finalise the agreement is what leads us to ratification

Ratification of Treaties

This is, at its simplest, a formal declaration by a state that it now accepts and is bound by some agreement it has signed. The Vienna Convention on the Law of Treaties requires that even before this signatories not act contrary to the treaty thusly 
Article 18 
Obligation not to defeat the object and purpose of a treaty prior to its entry into force  
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: 
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or 
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. 

That said the treaty is not in force, nor is it truly 'complete' until ratified [10]. One reason, mentioned above, for wanting to do this is to involve the legislature. In the United Kingdom, this takes the form of section 20 of the Constitutional Reform and Governance Act 2010 [11] [12]

20. Treaties to be laid before Parliament before ratification

(1) Subject to what follows, a treaty is not to be ratified unless—

(a) a Minister of the Crown has laid before Parliament a copy of the treaty,

(b) the treaty has been published in a way that a Minister of the Crown thinks appropriate, and

(c) period A has expired without either House having resolved, within period A, that the treaty should not be ratified.

(2) Period A is the period of 21 sitting days beginning with the first sitting day after the date on which the requirement in subsection (1)(a) is met.

  [various further provisions omitted]
 This is the codification of the 'Ponsonby Rule'. Prior to this Act, there was no domestic requirement to do pretty well anything to ratify a treaty. It was purely a matter for the executive. Although not ever unique to the United Kingdom, this had become somewhat anomalous by the 21st century. The said 'Rule' was a convention that treaties were laid before Parliament for twenty-one days before being ratified [13]. 

That's the domestic legal bit over and done with. What does this look like in practice? Well, as usual there is more than one way to do this, because it wouldn't be diplomacy, or the British Constitution, if there was not.

Ratification by Her Majesty the Queen

Certain treaties, usually but not always those of the most significant nature, are not concluded between 'governments' or 'states' but this mysterious entity - a High Contracting Party.

For example we see at the beginning of the Treaty of Nice [14] a list of the parties thereto

(capitals as original), which rather than being a list of countries or governments is a list of Heads of State - in years ago a list of sovereigns [15]. Later we find at Article 12

This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

So what does such a ratification look like? Well, this is the United Kingdom so it is quite spectacular [16]

Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith, &c., &c., &c., To all and singular whom these Presents shall come, Greeting!

WHEREAS, a Protocol No. 15 amending the Convention on the Protection of Human Rights and Fundamental Freedoms [17] was signed at Strasbourg on the Twenty-fourth day of June in the Year of Our Lord Two thousand and Thirteen by the Plenipotentiaries of Us in respect of Our United Kingdom of Great Britain and Northern Ireland and the Plenipotentiaries of the Heads of the other member states of the Council of Europe, duly and respectively authorised for that purpose;

Now there We, having seen and considered the Protocol aforesaid, have approved, accepted and confirmed the same in all and every one of its Articles and Clauses, as We do by these Presents approve, accept, confirm and ratify it, for Ourselves, our Heirs and Successors; engaging and promising upon Our Royal Word that We will sincerely and faithfully perform and observe all and singular the things which are contained and expressed in the Protocol aforesaid, and that We willl never suffer the same to be violated by any one, or transgressed in any manner, as far as it lies in Our power. For the greater testimony and validity of all which, We have caused Our Great Seal to be affixed to these Presents, which We have signed with Our Royal Hand.

GIVEN at Our Court of Saint James's, the nineteenth day of March in the Year of Our Lord Two thousand and Fifteen and in the Sixty-fourth Year of Our Reign.

L.S. [18]

First off - diplomatic et ceteras - don't see those that often anymore! This actually (see blogs passim) does look rather like Letters Patent, and I suppose in a way it is, albeit one for foreign not domestic consumption. 

having seen and considered the Protocol aforesaid

I think this harks back to an earlier time, where ratification was more used a tool for sovereigns to check and approve what their plenipotentaries were up to, rather than its modern purposes. I also notice the claim to ratify not just for now but for future Kings too. Finally, and this perhaps is the key big, is the promise, 

We willl never suffer the same to be violated by any one, or transgressed in any manner, as far as it lies in Our power

or, in other words pacta sunt servanda. One also notes that unlike almost all domestic Letters Patent, this is signed by the Queen. 

This is the system used for the most significant of treaties, which require the greatest formality. What about, then, the 'lesser' ones [19].

Ratification by the Secretary of State

When a treaty is not between the somewhat mysterious High Contracting Parties it is concluded between governments or states (which terms seem to be used almost interchangeably [20]). These are not ratified by the Queen but instead by the Secretary of State for Foreign, Commonwealth, and Development Affairs. 
WHEREAS the Marrakesh Treaty to Faciliate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled [21] was adopted by the Diplomatic Conference to Conclude a Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities on 27 June 2013 and the United Kingdom of Great Britain and Northern Ireland became a signatory to that Treaty on 28 June 2013;

AND WHEREAS paragraph (b) or Article 19 provides that each other eligible party referred to in Article 15 may become party to the said Treaty following the expiration of three months from the date on which it has deposited its instrument of ratification or accession with the Director General of the World Intellectual Property Organisation;

AND WHEREAS the procedures necessary to this end have been completed by the United Kingdom of Great Britain and Northern Ireland;

NOW THEREFORE the Government of the United Kingdom of Great Britain and Northern Ireland, having considered the aforementioned Treaty, hereby confirms and ratifies the same in respect of:
     The United Kingdom of Great Britain and Northern Ireland
     The Bailiwick of Guernsey
     The Bailiwick of Jersey
     The Isle of Man

and undertakes faithfully to perform and carry out all the stipulations therein contained.

IN WITNESS WHEREOF this Instrument of Ratification is signed and sealed by Her Majesty's Principal Secretary of State for Foreign, Commonwealth, and Development Affairs.

Done at London on the 24th day of September Two thousand and Twenty.

Dominic Raab


This has a very different structure indeed. It begins with some recitals, but in more detail that the ratification by Her Majesty, including the conditions necessary for it to come into force. 

We then see a territorial extent. For the vast majority of countries this is not necessary. For the United Kingdom (and, in particular France and the Netherlands, but there are others too), however, it is. The UK has series of territories, comprising the British Overseas Territories and the three Crown Dependencies for which it is responsible in international law, but which are not [22] part of the UK. It is now settled British practice that treaties only apply to these territories if the UK explicitly says it does. Here we some, but not all, listed. Whether a territory does have a treaty extended to it depends on whether it actually wants it to be extended, which is another bit of democracy in this whole process that ratification allows.

Some treaties within them actually contain more expansive extent clauses, but the UK maintains a practice that it can unilaterally make these declarations even if the treaty is silent. Everyone in the world seems content to go along with this, so it works.

The seal attached to this would not be the Great Seal but instead the Secretary of State's seal. The photo of the EU Withdrawal Agreement in the Annexe (which is also discussed below) is clearer I think.

So that's how signed treaties are perfected. What about a treaty - perhaps a multilateral convention - that the UK has not signed but now wishes to join?

Accession by Her Majesty

When a treaty is no longer open for signature it may provide for other states to nontheless sign up. This process is called accession. In some cases, there is little difference to the two processes. In others, whereas ratification may be an automatic right of a signatory - those negotiating have total freedom to decide who is allowed to sign - accession may come with conditions [23].

Either way, an instrument of accession must be deposited. This might be an unilateral act if there are no conditions, or it may be after those conditions are satisfied. When Her Majesty does this, it looks a bit like this

Elizabeth the Second, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith, &c., &c., &c., To all and singular whom these Presents shall come, Greeting!

WHEREAS, a Second Protocol [24] to the Hague Convention of 1954 [25] for the Protection of Cultural Property in the Event of Armed Conflict 1999 was done at The Hague on the Twenty-sixth day of Match in the Year of Our Lord One thousand Nine hundred and ninety-nine.

Now there We, having seen and considered the Second Protocol aforesaid, have approved, accepted and confirmed the same in all and every one of its Articles and Clauses, as We do by these Presents approve, accept, confirm and accede it, for Ourselves, our Heirs and Successors; engaging and promising upon Our Royal Word that We will sincerely and faithfully perform and observe all and singular the things which are contained and expressed in the Second Protocol aforesaid, and that We willl never suffer the same to be violated by any one, or transgressed in any manner, as far as it lies in Our power. For the greater testimony and validity of all which, We have caused Our Great Seal to be affixed to these Presents, which We have signed with Our Royal Hand.

GIVEN at Our Court of Saint James's, the 31st day of July in the Year of Our Lord Two thousand and Seventeen and in the Sixty-sixth Year of Our Reign.


This looks, aside from some words being changed, all but identical to ratification. And it is, because from the stand point of the law - domestic and international - there is not much difference at all.

Now we have to move on to something a little less florid (an accession by the Secretary of State just changes the words from ratify to accede so we can skip it).


Acceptance of a treaty is confusingly used in two overlapping ways. Some states use it for all - or essentially all - ratifications and accessions. Others, like the UK, use it for a very simple form of ratification which consists of just notifying a depositary that the UK is ok with something.

A simple example of this was the accession of North Macedonia to NATO, where the the protocol in question simply required the parties to go 'ok' - albeit diplomatically. Expressed by the Secretary of State thusly

WHEREAS the Protocol to the North Atlantic Treaty [26] on the Accession of the Republic of North Macedonia [27] was signed at Brussels on 6 February 2019, by the Parties to the North Atlantic Treaty;

AND WHEREAS Article II of the said Protocol provides that each of the Parties to the North Atlantic Treaty shall give notification of their acceptance to the Government of the United States of America;

NOW THEREFORE the undersigned, Her Majesty's Principal Secretary of State for Foreign and Commonwealth Affairs, hereby notifies the Government of the United States of America of the acceptance by the Government of the United Kingdom of Great Britain and Northern Ireland of the Protocol aforesaid.

Done at London the SIXTEENTH day of OCTOBER, Two thousand and nineteen.

Dominic Raab


Those dates in capitals are as original. Irks me too, don't worry. Nice and simple, it is sort of a minature, cut down version of a ratification by the Secretary of State. Which does make sense since that is how the UK perceives this: it is simply notifying the United States, who are depository of the treaty (more on them later, that term has come up a few times now) that the UK agrees to North Macedonia joining.

The EU Withdrawal Agreement

This is a bit of an odd one [28]. Let's see the text
WHEREAS the Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community was signed at Brussels and London on 24 January 2020;

AND WHEREAS Article 185 of the said Agreement provides that this Agreement shall enter into force on one of the following dates, whichever is the earliest:
(a) the day following the end of the period provided for in Article 50(3) Treaty on European Union, as extended by the European Council in agreement with the United Kingdom, provided that, prior to that date, the depositary of this Agreement has received the written notifications by the Union and the United Kingdom regarding the completion of the necessary internal procedures;
(b) the first day of the month following the receipt by the depositary of this Agreement of the last of the written notifications referred to in point (a).
AND WHEREAS the procedures necessary to this end have been completed by the United Kingdom of Great Britain and Northern Ireland and by the territories for which it is internationally responsible; 
NOW THEREFORE the Government of the United Kingdom of Great Britain and Northern Ireland, having considered the aforementioned Agreement, hereby notifies in accordance with Article 185 thereof completion of the necessary internal procedures for the purpose of entry into force of this Agreement and undertakes to faithfully perfom and carry out all the stipulations therein contained. 
IN WITNESS WHEREOF this Instrument is signed and sealed by Her Mjaesty's Principal Secretary of State for Foreign and Commonwealth Affairs. 
Done at London the TWENTY-NINTH day of JANUARY, Two thousand and twenty.

Dominic Raab


This to me feels a bit like a conflation of an acceptance and a ratification, having elements of both. The key bit is that it is specifically notifying not a consent to be bound but the completion of necessary internal procedures. Which is one facet of the purpose behind ratification we noted earlier. This may - though I speak without authority here - be simply due to the anomalous nature of an exiting member of a supranational union negotiating an agreement with the union itself. 

Either way, for such a key international treaty in the modern political life of the United Kingdom, it is worth paying it some attention.  

It is also worth noting this line

and by the territories for which it is internationally responsible

The EU treaties applied - somewhat unusually in modern times - to all the Overseas Territories and Crown Dependencies [29]. This is therefore actually a statement that the United Kingdom is disapplying its normal practice and explicitly stating this notification is for it and all the BOTs and Crown Dependencies. [30]

But sometimes a state wishes instead to end its treaty obligations. This is obviously a somewhat fraut process at times, but sometimes it can be rather simple.


Article 15 of the London Fisheries Convention [31] provides that,
The present Convention shall be of unlimited duration. However at any time after the expiration of a period of twenty years from the initial entry into force of the present Convention, any Contracting Party may denounce the Convention by giving two years' notice in writing to the Government of the United Kingdom of Great Britain and Northern Ireland. The latter shall notify the denunciation to the Contracting Parties.

On 3rd July 2018, Boris Johnson - the then Secretary of State - did just this. By, it seems, writing to one of his own Civil Servants.

Dear Mr Harrison

I refer to the Fisheries Convention, done at London on 9 March 1964, and which the United Kingdom of Great Britain and Northern Ireland ratified on 11 September 1964.

In accordance with the provisions of Article 15 of the Convention, I hereby give notice of the denunciation of this Convention by the United Kingdom of Great Britain and Northern Ireland to take effect 2 years from the date of this letter or on the date on which the United Kingdom ceases to be a Member State of the European Union, whichever is the later date.

I should be grateful if you will kindly notify the Contracting Parties of the UK's denunciation.

Yours Sincerely

Boris Johnson


This actually shows the role of the depositary very clearly. They are the conduit through which the ratification and - if necessary - denunciation process flows. Even if the state which is the depositary is the one doing the denouncing [32] .

That letter suffices to trigger the process. There does not seem to be a formal serious document which does so. In a way, this may be unsurprising, states probably don't want to parade about their cessation of treaty obligations. 

That concludes part one of this pair of blogs. In part two, which is actually almost finished so hopefully a short wait, we will look at two things: reservations and declarations, and the other side of the coin entirely, viz.what do depositaries do.


These are the images corresponding to the things I have OCRed and fixed above


Back to writing it seems. Did find the last six months or so to be an eternal curse of writers block, but there we go. Usual comment applies, please let me know about any errors or omissions, and I'll gladly correct or clarify.

I am indebted to the little known UK Treaties Online system the FCDO run, without which this blog would be very light on citations. The instruments of ratification themselves, etc, came from an FOI request.

[1] Literally every tax treaty ever signed ever is baffling. Even if  I did benefit as a result of the Convention between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland for the avoidance of Double Taxation and the prevention of Fiscal Evasion with respect to Taxes on Income and Capital Gains, aka the USA-UK Tax Treaty
[2] The Treaty of Versailles springs to mind here.
[3] Let's elide non-state things which can do this with states for now, little turns on it in practice.
[4] Some might right 'powers' here to capture the Holy See and the Sovereign Military Order of Malta, again, I will elide them with states.
[5] The Latin maxim is pacta sunt servanda.
[6] I will use the terms agreement, pact, treaty, convention, protocol,  etc. pretty much interchangeably because for our purposes nothing turns on whatever limited distinctions exist between them. Amazing how much of this is just different words for the same things, really!
[7] Treaty Series No. 2 (2021) CP 385. All treaties once they come into force are presented to Parliament and numbered in the Treaty Series, so, e.g. the Treaty of Versailles was Treaty Series No. 4 (1919). This is done 'by Command of Her Majesty', hence they are also 'Command Papers'. These are numbered also in a series of series, the current one being the 'CP' series. Versailles was Cmd. 153.
[8] Sometimes 'municipal law' or 'internal law', cf. Article 27 of the Vienna Convention of the Law of Treaties which (attempts to) prohibit states from leaving treaties unimplemented in domestic law.
Article 27 
Internal law and observance of treaties 
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

(Treaty Series No. 58 (1980), Cmnd. 7964) 

[10] And any other requirements necessary for it to come into force have been met, e.g. a certain number of parties have ratified, or some period of time has elapsed. This is what paragraph (b) or Article 18 is envisaging.
[11] 2010 c. 25; this has on occaision been dispensed with by Act, e.g. by sec. 36 of the European Union (Future Relationship) Act 2020 (c. 29); and in one case enhanced by Act, cf. what was sec. 13 of the European Union (Withdrawal) Act 2018 (c. 16), although this provision was subsequently repealed, and the 2010 Act disapplied, by secs. 31 and 32 of the European Union (Withdrawal Agreement) Act 2020 (c. 1); there was also for a time a bespoke procedure for certain non-withdrawal related EU  treaties contained in sec. 2 of the European Union Act 2011 (c. 12).
[12] Similarly, American readers may be familiar with Article II section 2 of the US Constitution which provides that
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur [...]
[13] This then begat the Country Series and the Miscellaneous Series of unratified treaties; prior to 2018 there was also a European Series for EU (and former EEC, etc) treaties. 
[14] Treaty Series No. 22 (2003) Cm. 5879.
[15] The presence of this list does not appear to be essential, e.g. the European Convention on Human Rights (Treaty Series No. 71 (1953), Cmd. 8969) refers to the High Contracting Parties but omits it, but as we shall see are still ratified by Her Majesty.
[16] On request, I have OCRed (and fixed, muchly) this and the other documents we will see. In the Annexe above is a PNG of the original image. Best of both worlds!
[17] This protocol does not seem to be in force yet, it was however published in the Miscellaneous Series No. 7 (2014) Cm. 8951.
[18] locus sigilli, here the Great Seal of the Realm is attached.
[19] They're not really lesser, they are no less binding and not really different, legally, at all.
[20] Except sometimes as a tool by states with awkward ratification requirements (the US....) to avoid something being a 'treaty' (as domestic law sees it).
[21] Not yet in force, published in the Miscellaneous Series as No. 025 (2019), CP 174.
[22] Really, they're not. Not at all. Not even an iota.
[23] Accession to the EU is a very extreme example of this, but even some anodyne commodities treaties have no automatic right of accession.
[24] Miscellaneous Series No. 1 (2017), Cm. 9411; not yet in force.
[25] Miscellaneous Series No. 6 (1956), Cmd. 9837; however, the UK only ratified this in 2017  (yes, really) and it doesn't seem to have meandered its way into the Treaty Series. This does provide an interesting demonstration of the difference between ratification and accession, though. The UK did sign the original convention back in 1956, but never signed the Second Protocol in 1999. So it had to ratify one and accede to the other!
[26] Treaty Series No. 56 (1949) Cmd. 7789
[27] Miscellaneous Series No. 20 (2019) CP 116; came into force in March 2020.
[28] At least from the perspective of the United Kingdom, I think this form of 'ratification' is not unique, just rarely used in UK diplomatic relations.
[29] E.g. Article 52 of the consolidated version of the Treaty on European Union.
[30] This is one of those things you don't spot until you're actually writing the blog itself
[32] There is in actuality no requirement for the depositary to be a party to the treaty at all, so this looks absurd but is inconsequential in practice.

Wednesday, 2 September 2020

Patents, Writs, and Lords who might not be Peers

In a previous blog, I excoriated all of you (and you know who you are!) who persist in the erroneous belief that Barons are addressed as Lord Firstname Surname. Now, that is out of the way, I think it might be fun to consider some of the more fun [1] bits of the Peerage.

We will start where I seem to always begin, with Letters Patent, then the unusual species of Barons known as Barons by Writ, then the curious incident that the Lords of Appeal in Ordinary might not, in truth, have been Peers. 

Letters Patent

These find form in the The Crown Office (Forms and Proclamations Rules) Order 1992 [2], which has since been amended a few times to take account of various constitutional changes. There are, naturally, five different forms, one for each degree of the Peerage. Helpfully, they are not all radically different, instead the Patent simply becomes more and more florid as one goes up the ranks [3]. So, the following is for Dukes, but after it the differences will be explained.

Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and Our other Realms and Territories Queen Head of the Commonwealth Defender of the Faith

To all Lords Spiritual and Temporal and all other Our Subjects whatsoever to whom these Presents shall come


Know Ye that We of Our especial grace certain knowledge and mere motion do by these Presents advance create and prefer Our [Trusty and Well-Beloved Benjamin Lewis] to the state degree style dignity title and honour of Duke of [Croesyceiliog]

And for Us Our heirs and successors do appoint give and grant unto him the said name state degree style dignity title and honour of Duke of [Croesyceiliog] and by these Presents do dignify invest and ennoble him by girding him with a sword and putting a cap of honour and a coronet of hold on his head an by giving into his hand a rod of gold [4] to have and hold the said name state degree style dignity title and honour of Duke of [Croesyceiliog] unto him and the heirs male of his body lawfully begotten and to be begotten

Willing and by these Presents granting for Us Our heirs and successors that he and his heirs male aforesaid and every of them successively [5] may enjoy and use all the rights privileges pre-eminences immunities and advantages to the degree of a Duke duly and of right belonging which Dukes of Our United Kingdom [6] as they do at present use and enjoy

In Witness whereof We have caused these Our Letters to be made Patent

Witness Ourself at Westminster the [26th] day of [August] in the [Fifty-Ninth] Year of Our Reign
In general this is a fairly standard form for a Letters Patent on anything. I suppose the most obviously interesting paragraph is the one beginning "And for Us Our heirs", for it is this one which varies between the different degrees. Dukes and Marquesses get the full treatment: a metaphorical [7] sword, cap, coronet and golden rod [9]. Earls get almost the same, but no rod. Viscounts and Barons however get the much reduced
And for Us Our heirs and successors do appoint give and grant unto him the said name state degree style dignity title and honour of [Viscount Lewis] to have and to hold unto him and the heirs male of his body lawfully begotten and to be begotten
So far, these Letters Patent are in the standard form, which as you notice is always to heirs male lawfully begotten (Life Peers omit that bit naturally). But, while Her Majesty cannot change the descent of a Peerage once created [10], She can create a Peerage with different rules. These are called special remainders, and were in the past used to, for example, allow a title to descend to a brother or uncle of the first holder where he was childless or only had daughters.

For example, the Barony of Fairhaven was created in 1961 with the remainder [11]
and in default of such issue with remainder to his younger brother Henry Rogers Broughton (commonly called the Honourable Henry Rogers Broughton) and to the heirs male of his body lawfully begotten

The Prince of Wales got what looks like a remainder, though in truth I like many suspect that the Principality of Wales and the Earldom of Chester are actually a sui generis species of life peerage [12]

To hold to him and his heirs Kings of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas for ever

(obviously modified to suit the current Royal Style). Some special remainders, that given to the Countess of Cromartie in 1861 being an extreme example, could be amazingly complicated and prolix, compared to these simple examples.

When life peers are introduced in the House of Lords, the Reading Clerk reads their Letters Patent aloud at the despatch box. Before 1999, only hereditary peers who were newly created were introduced (if they succeeded to the dignity Hansard just records "sat first after the death of his father" once they proved - if necessary - the descent) so none of the 92 representative peers will ever have theirs read by definition.

Baronies by Writ

Letters Patent were, before 1999, not the only way to create a Peerage. It was held by ancient custom that the mere receipt of a Writ of Summons (which all Peers got alongside their Patents normally) was sufficient provided the person summoned took up their seat. This was true even if the writ was issued as a result of the most egregious error. It is believed that, in actuality, this is the original method of creating baronial titles - that is they became hereditary not by some declaration of the Crown, but because the Crown invariably summoned the heirs of deceased barons to Parliament [13][14].

So, did this happen? Umm, yes. Examples include a farcical series of events surrounding the Baron Wharton: the barony, along with some other titles, should have been extinguished in 1729 when the holder was declared an outlaw. In 1844, the Committee of Privileges incorrectly decided that the barony was actually a barony by writ anyway (it wasn't, more on why this matters in a bit) and thus abyeant. That abeyance was then purportedly terminated in 1916, but in actuality an entirely new Wharton Barony was created by writ instead.

Equally, in 1722 the son of the Duke of Somerset was purportedly summoned to Parliament by Writ in Acceleration (see blog passim) in the name of Baron Percy. Except that the Percy barony was extinct, and had been since 1670. Consequently, since all peers sitting by Writ in Acceleration receive a Writ of Summons, a new barony was created - though of less importance than Wharton since Percy would eventually inherit Somerset anyway.

Even more amusingly, this was not the first time this very error had occurred! In 1628, the son of the then Earl of Derby was summoned by Writ in Acceleration in the name of Baron Strange. Now, the Strange barony that the Derbys purportedly held was claimed to be the second creation (of three, at the time), but this (being created in 1299) was abeyant [15][16]. Consequently, a new, fourth, Strange barony had in fact created. It and the Earldom subsequently parted company, and Lady Strange, as a Peeress suo iure was for a time a post-1999 representative peer.

Unlike the default state with Letters Patent, baronies by writ are inheritable by the heirs general lawfully begotten. Which is what creates the curious phenomenon of abeyance, since that formulation whilst permitting a sole daughter to inherit, instead causes multiple daughters to inherit as co-heirs. To me, given the inevitable complexities abeyance introduces, it is no surprise errors were made. Abeyance I will blog about more fully another day.

Were the Lords of Appeal in Ordinary Peers?

I am persuaded that the answer to this question is: no. By way of background, before the creation of the Supreme Court [17] the highest court in the United Kingdom [18] was the House of Lords (the High Court of the Queen in Parliament Assembled). To facilitate this [19], the Appellate Jurisdiction Act 1876 had enabled Her Majesty to appoint persons to the Lords for their lives (so not creating a steady stream of hereditary dignities) to staff the Appellate and Appeal Committees of the House which had been delegated its judicial functions. In particular, it provided that
For the purpose of aiding the House of Lords in the hearing and determination of appeals, Her Majesty may, at any time after the passing of this Act, by letters patent appoint two qualified persons to be Lords of Appeal in Ordinary [...] Every Lord of Appeal in Ordinary, unless he is otherwise entitled to sit as a member of the House of Lords, shall by virtue and according to the date of his appointment be entitled during his life to rank as a Baron by such style as Her Majesty may be pleased to appoint, [...]

(Initially, until 1887, it was provided that a Lord of Appeal in Ordinary would cease to be a member of the Lords on retirement too, which prompts some of the discussion we see in Hansard below). Italics are mine but also demonstrate the matter clearly. These were not peerages. If they were the section would have also declared that as well as ranking as a Baron they enjoyed the rights of Barons. In the Letters Patent we see something similar, viz.

Elizabeth the Second by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and Our other Realms and Territories Queen Head of the Commonwealth Defender of the Faith

To whom these Presents shall come


Whereas Our [Trusty and Well-Beloved Baroness Hale] has resigned her Office of a Lord of Appeal in Ordinary and the same is now vacant Now Know Ye that We of Our especial grace have in pursuance of the Appellate Jurisdiction Act 1876 as amended by subsequent enactments nominated and appointed and by these Presents Do nominate and appoint Our [Trusty and Well-Beloved Benjamin Lewis] to be a Lord of Appeal in Ordinary by the style of Baron Lewis to hold the said Office so long as he shall well behave himself therein subject to the provisions in the said Act mentioned with all wages profits privileges rank and precedence whatsoever to the said Office belonging or in anywise appertaining and to hold the said style of Baron unto him the said [Benjamin Lewis] during his life

In Witness whereof We have caused these Our Letters to be made Patent

Witness Ourself at Westminster the [26th] day of [August] in the [fifty-ninth] year of Our Reign

See in the italics how the privileges of the Office of Lord of Appeal in Ordinary (held quamdiu se bene gesserit) are separate from the style and rank as a Baron? In addition to this, one of the rights of a baron (pre-1999 anyway) was to sit in Parliament, so if the Lords of Appeal in Ordinary had all the rights of barons, they would necessarily have a seat for (at least) life in the House.

It is to me curious that while in the debates in the Lords on this bill [20] these new Lords of Appeal in Ordinary were referred to as "Peers", Disraeli was clear in the Commons that [21]
Besides this, we propose that there shall be two Lords of Appeal in Ordinary, chosen from the Bench or from the learned Bar, who shall be summoned to Parliament as Barons, who shall exercise their privileges as Barons while they hold these offices, and who when they have ceased to hold them will still possess the rank.

Which seems a choice of words much more in accord with the statutory scheme. Indeed, Sir William Harcourt (who appears to broadly have been opposed to keeping the House of Lords as the final court of appeal) also said [22]

What a farce it was, for it seemed that when one of them ceased to be a Judge he would cease to be a Peer in the ordinary sense of the word; and that suggested that in order to improve our Judicature we should be compelled to separate it from the hereditary Peerage

where the intentionally anomalous status of these "Peers" is made clear. Further, Sir George Bowyer  ( a Liberal so also an opponent) then went on to say [23]
The two persons who might be appointed as Lords Justices to assist the House of Lords would not be Peers, although they might be Lords of Parliament. They would be in a position analogous to that of the Bishops, who were not hereditary Peers. 
This curious confusion between terminology used in each House was commented on by Sir John Simon S.L. [24] in the Committee of the Whole House [25]
It had been said that these Lords of Appeal would be Lords of Parliament only and not Peers; but such high authorities as the Lord Chancellor, Lord Selborne, and Lord Hatherley had spoken of them as Peers. They had also been compared to the Scotch and Irish Peers, and even to the Bishops; but he contended that there was no analogy whatever between them.
The consideration in Committee was adjourned to take some Supply business and the House was later counted out. A month later, this thread being picked up again, Sir George reiterated his earlier point [26]
It was true they were to sit and vote, but they would not be Peers; their position would resemble that of the Bishops, who also were Lords of Parliament, not Peers. The hereditary character of the House of Lords was the real essence of the Peerage, and where there was not a hereditary right there was no Peerage. To show that the Bishops were not Peers, he would just state that if a Bishop were charged with felony, he would not, as a Peer would be under similar circumstances, be tried by the Court of the High Steward in the House of Lords, but by an ordinary jury, like any other commoner. These would not be "Peers made by statute," for the Act would simply empower the Queen to make a Lord of ​ Parliament, and if he resigned his office he would, like a Bishop who resigned, be no longer a Member of the House of Lords, and would no longer be summoned to sit there. There were Constitutional objections to the creation of life Peerages, as it would tend to degrade the House of Lords to the level of those miserable Senates which existed in Continental countries, and this was probably the reason why the Bill did not propose to make life Peers.
Which while he was no proponent of the Bill, to me accurately sets out the position: the Lords of Appeal were intentionally not Peers. And the reasons given appear to me to be cogent (for the time) too - it was desired to keep the Peerage, an hereditary dignity, separate from these life dignities.

Amusingly, the Attorney-General [27] later in the same debate made a, to modern eyes, prescient point [28]
It would be very dangerous to place in the hands of a Prime Minister the power of creating at any particular juncture of politics a number of life Peers under the disguise of appointing Assistant Lords of Appeal. 

I think these quotes from Hansard make it clear that, while in the upper house discussions were quite unclear (perhaps it was just obvious to them the difference between these quasi-Peers and the real ones?), in the Commons the matter was clear cut. The Lords of Appeal in Ordinary were not to be Peers. Though as we noted earlier, a decade later they were given a life membership of the House regardless.

Although several are still alive, no new Lords of Appeal in Ordinary can be created, so this will be an ever diminishing set of persons who rank as Barons, but are not, in actuality, Barons.

Of course, the new Justices of the Supreme Court might have the style of Lord Surname, but they do not even rank as Barons at all. 


Did I ever mention how I love Letters Patent? I also can't remember who tipped me off about Lords of Appeal in Ordinary not being Peers, but thank you!

[1] Well, I find this fun, anyway.
[2] S.I. 1992 No. 1730; amended by S.I. 1996 No. 276 (changes to Commission Areas for Justices of the Peace); S.I. 2020 No. 3064 (more changes to Justices of Peace, but more importantly, the House of Lords Act 1999); and S.I. 2002 No. 3131 (to add "Great Women" to a part of the Writs of Summons for a Lord Spiritual)
[3] In truth, making this blog manageable, there are only three variations. The only differences between Dukes and Marquesses and between Viscounts and Barons being the form of the title itself. I have long wondered, partially inspired by this video of HRH the Duke of York taking his seat in the Lords (the last member of the Royal Family to do so, as it happens) if this is why the customary set of three is Duke-Earl-Baron, since there you see three Patents which actually differ a bit.
[4] For a Duchess suo iure this would read "to dignify invest and really ennoble her with such name state degree style dignity title and honour of Duchess of ...", with comparable forms for lower degrees.
[5] Before the 2000 amendments as a result of the House of Lords Act 1999, the phrase "may have hold and possess a seat place and voice in the Parliaments and Public Assemblies and Councils of Us Our heirs and successors within Our United Kingdom amongst the Dukes and also that he and his heirs male aforesaid successively" appeared here; it remains in the Patents of Life Peers.
[6] Ditto, "have heretofore used and enjoyed or"
[7] For the Prince of Wales they are very much real, and that idiotic [8] ceremony in the first season of The Crown where supposedly the Duke of Edinburgh was invested was basically just the Welsh ceremony mangled. Before Georgian times there was an actual ceremony, though, which did involve caps and coronets and so on.
[8] In my entirely not humble opinion, that scene is one of the singularly most egregious errors in the whole thing. Mostly because it was wrong and unnecessary at the same time. 
[9] Think sceptre. There will be more on coronets another day.
[10] Only an Act of Parliament can.
[11] The London Gazette, issue 42421, page 5506; but I am indebted to Sir David Beamish, the former Clerk of the Parliaments, who maintains a list of these (and many other things) on peerages.info
[12] Same list, curiously not actually mentioned in the Gazette.
[13] It was also held in 1621 by the House of Lords (in the case of the first Earl of Bristol) that the writ was a right of a Peer and the King could not deny it - only an Act of Parliament could.
[14] There is some subtlety to this, but this is the basic idea.
[15] It fell into abeyance in 1594 and remained so until 1921.
[16] The first and third creations were extinct. Interestingly the first, second, and third creations were all by writ too!
[17] By the Constitutional Reform Act 2005, effective 2009.
[18] Except Scottish criminal cases, because ... well just because.
[19] The Wenslydale peerage case is a topic for another day, before anyone mentions it.
[20] Lords Hansard, volume 227, columns 909-927; 1286-1292; 1944-1946.
[21] Commons Hansard, volume 229, column 1686 (the full speech spanning columns 1680-1693)
[22] ibid. column 1705
[23] ibid. column 1710
[24] S.L. means "Seargent at Law", a now obsolete rank of lawyer superior to the Queen's Council; consequently in Hansard Sir John is always listed as Mr. Seargent Simon
[25] Commons Hansard, volume 230, column 1163
[26] Commons Hansard, volume 231, columns 761-2
[27] At the time, Sir John Holker, QC. He had formerly been Solicitor-General.
[28] ibid. column 884

Friday, 21 August 2020

Demises of the Crown - Parliament and Council

In a previous blog, we discussed the effect of a Demise of the Crown on a General Election [1]. Here, we will instead discuss what happens in Parliament otherwise.

Historical Situation

Before 1707, it was held that the King was caput, principium, et finis of Parliament [2], and thus a Demise of the Crown would instantly put an end to a sitting Parliament. During the Hanoverian succession, this was felt to be quite inconvenient, if not actually dangerous. So the Succession to the Crown Act 1707 [3] was passed, section IV of which provided that

And be it further enacted by the authority aforesaid, that this present Parliament, or any other Parliament which shall hereafter be summoned and called by Her Majesty Queen Anne, her heirs or successors, shall not be determined or dissolved by the death or demise of her said majesty, her heirs or successors, but such parliament shall, and is hereby enacted to continue, and is hereby empowered and required, if sitting at the time of such demise, immediately to proceed to act, notwithstanding such death or demise, for and during the term of six months, and no longer, unless the same be sooner prorogued or dissolved by such person to whom the Crown of this realm of Great Britain shall come, remain and be, according to the acts for limiting and settling the succession, and for the union above-mentioned; and if the said Parliament shall be prorogued, then it shall meet and sit on and upon the day unto which it shall be prorogued, and continue for the residue of the said time of six months, unless sooner prorogued or dissolved as aforesaid. 
and section V provided for an adjourned or prorogued Parliament to be recalled
And be it further enacted by the authority aforesaid, that if there be a Parliament in being, at the time of the death of Her Majesty, her heirs or successors, but the same happens to be separated by adjournment or prorogation, such Parliament shall immediately after such demise meet, convene and sit, and shall act, notwithstanding such death or demise, for and during the time of six months and no longer, unless the same shall be sooner prorogued or dissolved as aforesaid.
The sixth months provisions of these two sections have since been repealed, but otherwise this legislation is still in force [4]. The last time section V was used seems to be in 1901, where on the death of Queen Victora on January 20th, Parliament stood prorogued to February 14th. Both Houses assembled, without any royal writ or proclamation, on 23rd January.

The procedure on a Demise of the Crown during a dissolution has changed over time, as we discussed before.

The Accession Proclamation

In 1952 the order of events became slightly complicated due to Her Majesty being in Kenya, but the basic principles all remain unchanged. When Her Majesty's Government are informed [5] that the Sovereign has died, a series of legal and practical events need to occur.

First of all, the printing of a London Gazette Extraordinary, with a black border, needs to be arranged - one assumes by the Controller of Her Majesty's Stationary Office. For example, the London Gazette Extraordinary of 6th February 1952 [5bis]

Then, the Lord President of the Council [6][7] issues writs summoning all Privy Counsellors, the Lords Spiritual and Temporal [8], the Lord Mayor and Alderman of London, and the High Commissioners of the fifteen Commonwealth Realms, to an Accession Council to be held at St. James' Palace.

If all goes to plan, this will be before Parliament meets, but as we will see in 1952 the Council met slightly later than the usual Commons sitting time.

The Lord President announces the Sovereign's death, the Clerk of the Council reads the proclamation draft, and the senior officials who will go out onto the Friary Court balcony for it to be read will sign it. A series of other orders, notably ordering the Park and Tower guns to be fired, are also issued. It appears that, even if in the Realm, the new King is not present for this proceeding.

The Accession Proclamation itself has changed somewhat over the many centuries - the first in a modern-ish form seems to date from 1547, and the text in 1952 (for the first time mentioning the representatives of the Commonwealth) was
Whereas it hath pleased Almighty God to call to His mercy our late Sovereign Lord King George the Sixth of Blessed and Glorious Memory by whose Decease the Crown is solely and rightfully come to the High and Mighty Princess Elizabeth Alexandra Mary : We, therefore, the Lords Spiritual and Temporal of this Realm, being here assisted with these of His late Majesty's Privy Council, with representatives of other members of the Commonwealth, with other Principal Gentlemen of Quality, with the Lord Mayor, Aldermen, and citizens of London, do now hereby with one Voice and Consent of Tongue and Heart publish and proclaim that the High and Mighty Princess Elizabeth Alexandra Mary is now, by the Death of our late Sovereign of happy Memory, become Queen Elizabeth the Second, by the Grace of God Queen of this Realm and of all Her other Realms and Territories, Head of the Commonwealth, Defender of the Faith, to whom Her lieges do acknowledge all Faith and constant Obedience, with hearty and humble Affection: beseeching God, by whom Kings and Queens do reign, to bless the Royal Princess Elizabeth the Second with long and happy Years to reign over Us.

Given at St. James's Palace, this Sixth day of February in the year of our Lord One thousand nine hundred and fifty-two.
Modern practice is for the Accession Council to give directions for the proclamation to be formally read on a subsequent date once preparations can be made. We will return to that later.

This must also be published as a Supplement to the London Gazette Extraordinary, as was done on 7th February 1952 [9]

Normally certain other matters would be included here, but those had to wait for the Queen to return from Kenya. The Gazette notably lists all the members of the Accession Council who were present, so we can see inter alia, the names of the Lord High Chancellor, Viscount Simonds, the Prime Minister, Sir Winston Churchill, and so on.

On the 8th February 1952 the Privy Council reconvened [10]. The first proceeding was to hear Her Majesty make a declaration to the Council. Then, at their Lordships' [11] request, Her Majesty makes an Order-in-Council to have the Declaration published.

This being done, Her Majesty must then take the oath required by the Protestant Religion and Presbyterian Church Act 1707 [12], viz. 
I, Elizabeth the Second by the Grace of God of Great Britain, Ireland and the British dominions beyond the seas, Queen, Defender of the Faith, do faithfully promise and swear that I shall inviolably maintain and preserve the Settlement of the True Protestant Religion as established by the laws of Scotland in prosecution of the Claim of Right and particularly an Act entitled an Act for the Securing the Protestant Religion and Presbyterian Church Government and by the Acts passed in both Kingdoms for the Union of the two Kingdoms, together with the Government, Worship, Discipline, Rights and Privileges of the Church of Scotland.
Two signed instruments containing this oath are produced, one is kept in the Books of the Privy Council and the other sent to the Court of Session to be entered in the Books of Sederunt [13].

Separately, a meeting of the Privy Council without the Queen present is held to make an Order-of-Council (not in-Council) directing the Lord Archbishop of Canterbury to prepare forms of service to remember the deceased King.

This is all published in the London Gazette, again with black border (one page of signatures omitted here) [14]
Because in 1952 two meetings of the Council were required, this appeared as part of the usual Gazette printed on the following Tuesday.

Finally, it seems that it is also necessary for the Earl Marshal to give instructions about Full Mourning, which is done by a notice in the Gazette too [15]

Within Parliament

Normally, the Accession Council would meet first and then Parliament second, but in 1952 this did not quite occur. The overall effect was very minor, however. The Commons Journal for this day begins thusly [16]
Wednesday, 6th February, 1952

The House met at half an hour after Two of the clock.

It having pleased Almighty God to take to His Mercy Our late Most Gracious Sovereign Lord King George of blessed memory, who departed this life this morning at Sandringham House, the Prime Minister acquainted the House that His late Majesty's Most Honourable Prioivy Council and others would meet this day at Five of the clock.

Mr. Speaker left the Chair.
In the House, just before it was suspended until the Accession Council had concluded, the Prime Minister informed the House what had happened [17]
Mr. Speaker, the House will have learned with deep sorrow of the death of His Majesty King George VI. We cannot at this moment do more than record a spontaneous expression of our grief. The Accession Council will meet at 5 o'clock this evening, and I now ask you, Sir, to guide the House as to our duties.
After the Accession Council had concluded, the House resumed and members began taking the Oath of Allegiance. Just like at the start of a Parliament, it is required (here by custom not law) that MPs and Peers re-take the Oath of Allegiance on a Demise in the Crown. Recorded in the Journals thusly,
Mr. Speaker resumed the Chair at Seven of the clock.

And His late Majesty's Most Honourable Privy Council and other having met, and having directed that Her Royal Highness the Princess Elizabeth, Duchess of Edinburgh, be proclaimed Queen on Friday at Eleven of the clock by the Style and Title of Elizabeth the Second, Mr. Speaker first alone, standing upon the upper step of the Chair, took and subscribed the Oath required by Law.

This also provides a hint about the public reading of the proclamation: the Accession Council directed it be done on the Friday, two days after they had met.

The House does not meet for the dispatch of public business until after His Majesty's funeral, so the House met on the 7th February solely to take the Oath of Allegiance and for the Speaker to inform the House (and enter into the Journals) messages of condolence from other Parliaments and assemblies. For example, this from France

Profoundly moved by the death of His Majesty King George VI, I desire to express in the name of the National Assembly the deep sympathy felt by the deputies for our great ally in its mourning. Remembering the noble example of heroism given by the late King during the last war, I salute his memory with sadness and respect. I beg you to convey our sentiments of sympathy and affection to all your colleagues and also to convey to the Royal Family my most sincere personal sympathy.

Edouard Herriot.

In total 23 messages were received over the coming days and weeks, all entered in the Journals, from France, Belgium, Luxembourg, Italy, Iceland, Japan, Peru, Chile, Indonesia, Sudan, Greece, Yugoslavia, Thailand, Portugal, Turkey, Switzerland, Argentina, Germany (and Berlin separately), Austria, the Netherlands, Uruguay, and Ireland.  

On the 8th February the House was told that on Monday, 11th February, the next steps in the process of a Demise in the Crown would happen.

The Humble Address

The Journals for 12th February note that the Prime Minister personally delivered Her Majesty's message to the House [18]
The Prime Minister at the Bar, acquainted the House that he had a Message from Her Majesty to this House, signed by Her Majesty's own hand; and he presented the same to the House, and it was read out by Mr. Speaker as follows, (all the Members of the House being uncovered):

I know that the House of Commons mourns with me the untimely death of my dear Father. In spite of failing health he upheld to the end the ideal to which he pledged himself, of service to his Peoples and the preservation of Constitutional Government. He has set before me an example of selfless dedication which I am resolved, with God's help, faithfully to follow.
Historically, it was acceptable for an MP to wear a hat whilst sitting (but not when speaking), hence the reference to "all members being uncovered". Messages from the Queen are (as we will see) normally presented by the members of Her Majesty's Household. The device of having a senior minister appear at the Bar of the House and hand the message to the Speaker to be read is reserved for the most solemn matters.

Immediately, after a small number of speeches, the House resolved an Humble Address, as usual nemine contradicente,
That an humble Address be presented to Her Majesty to convey to Her Majesty the deep sympathy felt by this House in the great sorrow which she has sustained by the death of the late King, Her Majesty's Father, of Blessed and Glorious Memory; 
To assure Her Majesty that His late Majesty's unsparing devotion to the Service of His Peoples and His inspiring example in the time of their greatest peril will always be held in affectionate and grateful remembrance by them; 
To express to Her Majesty our loyal devotion to Her Royal Person and our complete conviction that She will, with the Blessing of God, throughout Her Reign work to uphold the liberties and promote the happiness of all Her Peoples.

In addition, messages (not addresses) were sent to the now Her Majesty the Queen Mother and the dowager  Queen Mary

That a Message of condolence be sent to the Queen Mother tendering to Her the deep sympathy of this House in Her grief, which is shared by all its Members, and assuring Her of the sincere feelings of affection and respect towards Her Majesty which they will ever hold in their hearts.

That a Message of condolence be sent to Her Majesty Queen Mary tendering to Her the deep sympathy of this House in Her further affliction and assuring Her of the unalterable affection and regard in which Her Majesty is held by all its members.

The House then proceeded to the lying-in-state of the King in Westminster Hall, and after returning adjourned until after His Majesty's funeral.

Final Matters

Over the coming months various other matters needed to be dealt with, from renewing the Civil List to the beginning of preparations for the Coronation. Those are for another time.

The actual ceremonial reading of the Proclamation is recounted in the London Gazette but I am suddenly failing to find the link. I will replace this paragraph with a link when I do.

This blog was, in its way, surprisingly short - but that's because on a Demise in the Crown an awful lot happens in a very, very short space of time!


The usual note that material from the Gazette is available under the Open Government License and from the Journals and Hansard under the Open Parliament License applies.

[1] And I promised I would return to this some day. Well that day is today.
[2] Somewhere in Blackstone, my PDF is weirdly scanned and the page numbers don't make sense.
[3] 6 Ann. cap. 41 (that is the Act as enacted), confusingly listed as chapter 7 in certain printed editions (I hate it when that happens)
[4] Section IX also continues in force, and is the authority by which new monarchs can continue using their predecessors Great Seal until a new matrix is made.
[5] This is not going to turn into a discussion of London Bridge. Others have covered that in far more detail than is proper. I will however use Her Majesty's Government, etc., throughout because that's the status quo.
[6] Currently the Right Honourable Jacob Rees-Mogg MP.
[7] The Privy Council Office have a wonderful web page about all this, I intend to cover things with the barest of detail compared to them.
[8] Whether this is still true post-1999 is unclear, but it certainly was true in the past.
[9] London Gazette, number 39457, pages 757 - 760; there are two pages of names after the one shown here and a final "God Save the Queen"
[10] If the Queen had not been abroad, instead She would have entered and the members of the Accession Council who were not Privy Counsellors would have departed. 
[11] Even non-Peers who are Privy Counsellors are Lords of the Council for certain phrases. Like this one!
[12] 1707 cap. 6 (Scots); which enactment is explicitly confirmed in the Acts of Union.
[13] I.e. the records of the court.
[15] London Gazette, number 39468, page 911
[16] Commons Journal, volume 207, number 34
[17] Commons Hansard, volume 495, column 943
[18] Commons Journal, volume 207, number 37

Sunday, 16 August 2020

The Death of a Speaker

 Wednesday, 3rd March, 1943 in the House of Commons [1][2]

Mr. Deputy Speaker, being informed of Mr. Speaker's death, left the Chair.

The Serjeant laid the Mace under the Table : and the Clerk Assistant, at the Table, acquainted the House that it was with extreme sorrow that he had to inform them that Mr. Speaker died this afternoon.

A Motion being made, That this House do now adjourn until Tuesday next - (Mr. Secretary Eden);

The Clerk Assistant, by direction of the House, put the Question, which being agreed to, the House adjourned accordingly at twenty minutes before Three of the clock, till Tuesday next.

As I have tweeted (and said) before, I think these four short paragraphs are the most sombre entries in any of the centuries of the records of the House of Commons, this being the only time a Speaker has died while the House was actually sitting [3]. Here follows the story of what happened next.

The Right Honourable Captain Edward Algernon FitzRoy, JP, DL, MP

Mr. Speaker FitzRoy had first entered the Commons for South Northamptonshire [4] in 1900. He lost the seat in 1906, regaining it in 1910, before switching to Daventry in 1918 when on a boundary change South Northamptonshire was abolished [5], which he represented until his death. A guards officer during the First World War, he was wounded in action whilst still a sitting MP.

After the war, he was elected Deputy Chairman of Ways and Means (and thus a Deputy Speaker) in 1924. And in 1928 he was elected as Speaker when Mr. Speaker Whitley [6] resigned due to ill health.

By all accounts he was a good Speaker. However, his health was also failing. It had been the case for several weeks that each morning in the Commons had begun, not with Mr. Speaker taking the chair, but instead an announcement by the Clerk [7]

The Clerk Assistant, at the Table, informed the House of the unavoidable absence, through indisposition, of Mr. Speaker from this day's sitting: -

Whereupon Colonel Clifton Brown, the Chairman of Ways and Means, proceeded to the Table and, after Prayers, took the Chair as Deputy Speaker, pursuant to the Standing Order.

The Standing Order referred to is still extant, but now finds form as paragraph (2) of Standing Order No. 3 [8]

Whenever the House shall be informed by the Clerk at the Table of the unavoidable absence or the absence by leave of the House of the Speaker, or where paragraph (3) of this order applies, the Chairman of Ways and Means shall perform the duties and exercise the authority of the Speaker in relation to all proceedings of this House, as Deputy Speaker, until the Speaker resumes the chair or, if he does not resume the chair during the course of the sitting, until the next meeting of the House, and so on from day to day, on the like information being given to the House, until the House shall otherwise order:

Provided that if the House shall adjourn for more than twenty-four hours the Chairman of Ways and Means shall continue to perform the duties and exercise the authority of Speaker, as Deputy Speaker, for twenty-four hours only after such adjournment.

The daily announcement then served to, in effect, renew the Chairman of Ways and Means' authority to act. (Nothing turns on paragraph (3) for our purposes). 

The 3rd of March

3rd March began with a similar announcement. A sign of the sudden nature of the announcement can be seen by looking at the Hansard of the ensuing proceeding - which was a motion to go into the Committee of Supply, and a debate was occurring on a statement made by the First Lord of the Admiralty [9] about naval affairs. 

Lieutenant-Commander Brabner [10], the member for Hythe was speaking when Hansard (with an em-dash) records him being cut off mid sentence [11]

This is something which has news value, and I believe these men ought to have had their story told at that particular time—

And the Clerk made his announcement. This is necessary because, without a Speaker, the House is not fully constituted (hence why the Serjeant-at-Arms put the Mace under the Table,  as it is on the first day of a Parliament before the Speaker is elected) and so the debate could not continue.

In addition, if there is no Speaker, then the authority - and indeed the appointment too - of the Deputy Speakers ceases, hence why the Chairman of Ways and Means left the Chair.

Today, one might assume that pursuant to Standing Order No. 1, the Father of the House would take the Chair. However, a careful reading of that Standing Order implies it would only be applicable on the day (or days) on which the election of the Speaker is held.

The Secretary of State for Foreign Affairs, Anthony Eden [12], on moving the adjournment (for there was little else the House could practically do) said [13]

The news which the House has just received will be felt, I think, as a tragic personal blow to each one of us. The Speaker was not only a great Speaker, but also he was a man whom every Member of the  House had come to regard as a personal friend. In that light, perhaps, most of all we shall always  remember him. This, as the House knows, is not the moment for the tributes which will in due course be paid, but I think I shall be expressing the feelings of every Member if now, on behalf of the House, I send a message of bur deepest and most heartfelt sympathy to Mrs. FitzRoy and to the family in the loss which, though it, is nearer to them than to us, is a loss which we the House of Commons feel also. 

[HON. MEMBERS: "Hear, hear."]

Meanwhile, in their Lordships' House, a debate on aid to China was underway when the Lord Cecil [14] interrupted proceedings to announce [15]

My Lords, I have just heard the most distressing news that Mr. Speaker passed away at two o'clock this afternoon. I cannot help thinking that your Lordships would feel it most inappropriate that this House should continue in session in the circumstances. I would therefore most respectfully suggest to the House that we should immediately adjourn, and that on the next sitting day we should pass a formal vote of sympathy with Mr. Speaker's widow and relations.

A few moments later, on the motion of Viscount Cranbourne [16], the House was adjourned. This itself was a singularly exceptional courtesy for the Lords to extend to the "other place", but more was to follow.

The 4th of March

Viscount Cranbourne opened proceedings in the Lords (the Commons being adjourned till the next week) [17]
My Lords, we meet to-day in the shadow of a melancholy event, an event almost unprecedented in Parliamentary history. Yesterday, as your Lordships know, Mr. Speaker died at his house in the Palace of Westminster.

His Lordship then moved that a message of condolence be sent to the Commons, which the Lords had never previously done when a Speaker died [18]

Moved, That a Message be sent to the Commons to express to that House the profound sympathy of the House of Lords on the loss which the House of Commons has sustained by the death of a Speaker who will long be remembered with affection and regard for the distinction with which he discharged the duties of his office.

And like a Humble Address to the King, the motion was agreed nemine dissentiente.

The 9th March

Pursuant to their resolution the previous week, the Commons reassembled to elect a new Speaker. The House still not being properly constituted, [19]

Hon. Members having repaired to their seats, the Sergeant at Arms (Brigadier Howard [20]), came with the Mace, and, laid it under the Table.
However, the House can not proceed to an election without the approval of the King, which Mr. Eden signified

The Secretary of State for Foreign Affairs (Mr. Eden): 

(addressing himself to the Clerk of the House, who, standing up, pointed to him, and then sat down): Sir Gilbert Campion, I have to acquaint the House that His Majesty, having been informed of the death of Captain the Right Honourable Edward Algernon FitzRoy, late Speaker of this House, gives leave to the House to proceed forthwith to the choice of a new Speaker.

This was before the modern Standing Order No. 1, and consequently, the Clerk of the House selected members to speak but himself had not power to actually do or say anything. Hence the pointing. 

Sir Douglas Clifton-Brown, who as Chairman of Ways and Means had been in the Chair when Mr. Speaker FitzRoy died, was elected Speaker without a division. Mr. Speaker Clifton-Brown then received the Royal Approbation in the usual way the same day.

The 10th March

The day was broadly an ordinary sitting day, except that as an early item of public business, Mr. Eden moved that the House express its sympathies with Mr. Speaker FitzRoy's family and recorded it's admiration for him for being their chair during the exigencies of the war. [21]
That this House places on record its sense of the great loss which it has sustained by the death of Captain the Right Honourable Edward Algernon FitzRoy, Speaker of this House, who during a period of more than fourteen years, of which the last three and a half years have been charged with unprecedented dangers to this Realm, fulfilled the duties of his high office both in peace and war with ability, authority and impartiality; that this House recognises that, by his judgment, firmness and unremitting attention to the business of Parliament and to the manifold duties of his office, he maintained in full degree the dignity and privileges of this House; and that this House desires to convey to Mrs. FitzRoy and to the members of the family an expression of the very deep sympathy which this House feels for them in their grievous loss.

And a motion for an Humble Address not, as is usual, to honour Mr. Speaker but instead his widow

That an humble Address be presented to His Majesty praying His Majesty that He will be most graciously pleased to confer some signal mark of. His Royal Favour upon the family of Captain the Right Honourable Edward Algernon FitzRoy, late Speaker of this House, for his eminent services during the important period in which he presided with such ability and dignity in the Chair of this House

Both of which were again agreed nemine contradicente, which Mr. Speaker Clifton-Brown decided to make clear for posterity

I feel sure that the House would like me to direct that it be entered on the records of this House that the Motion was carried nemine contradicente.

The message from the Lords was then considered. Earl Winterton [22], the member for Horsham and Worthing, noted the significance of it [23]

May I raise a point about the Lords Message? As far as I know, it is quite unprecedented and a most graceful and grateful action on the part of another place to pass a Resolution of that kind. May I ask the Leader of the House whether it is intended to take any notice of it?

On another motion by Eden [24], the Commons formally replied to their Lordships

That this House desires to express its sense of grateful appreciation to the House of Peers for their Message conveying their profound sympathy on the loss which this House has sustained by the death of Mr. Speaker FitzRoy.

The 16th March

Before questions, as is customary for messages from the King, the Vice-Chamberlain of His Majesty's Household [25] reported His Majesty's reply to the Humble Address

I have received your Address praying that I will confer some signal mark of my Royal Favour upon the family of Captain the Right Honourable Edward Algernon FitzRoy, late Speaker of the House of Commons, for his eminent services during the important period in which he presided with such ability and dignity in the Chair of your House. 
I have the highest sense of the long services and great merit of Captain the Right Honourable Edward Algernon FitzRoy, your late Speaker, and will comply with your wishes.

The 30th March

A new writ was moved for the Daventry constituency, which I mention only because it then became caught up in a minor, simmering, dispute about the out of date electoral registers. After a division, the writ was issued.

The 3rd May

The King put these words into action on 3rd May by making the late Speaker's widow a Viscountess suo iure, as recorded in the London Gazette on the 4th May [26]

Whitehall, May 4, 1943.

The King has been pleased, by Letters Patent under the Great Seal of the Realm, bearing date the 3rd instant, to confer the dignity of a Viscounty of the United Kingdom upon Muriel FitzRoy, C.B.E., widow of the Right Honourable Edward Algernon FitzRoy, late Speaker of the House of Commons, and the heirs male of her body lawfully begotten, by the name, style and title of Viscountess Daventry, of Daventry, in the County of Northampton.

The remainder there provides [27] that after Lady Daventry, the Viscounty descends like a normal Peerage to heirs male only. It was also the rule at the time that Peeresses suo iure could not sit in the Lords [28], so Lady Daventry could not take up a seat in the Lords. Her son, however, did take up the seat on 5th December 1962.

On 2nd September 1962, another Speaker, Sir Harry Hylton-Foster, died in office. But at the time the House was adjourned for the Summer recess. A somewhat shorter story for a future blog.


Usual note that the text of Hansard and the London Gazette are available under the Open Parliament and Open Government Licenses respectively (though there is no practical divergence between them, I understand).

[1] Who were actually sitting in the chamber of the House of Lords

[2] Commons Journal, Volume 198, No. 37

[3] A few have died during periodic adjournments and prorogations.

[4] A wonderfully confusing name for a constituency.

[5] It has since been revived.

[6] John Henry Whitley, PC. Whitely decline the customary Peerage. Mr. Speaker Bercow is the only other Speaker (except those who died) since 1789 not to be called up to the House of Peers on retirement.

[7] In the era before Deputy Speakers (a surprisingly recent nineteenth century innovation) it was generally accepted that the House could not meet with the Speaker being present.

[8] It transpires what is now paragraph (2) is identical to the original Standing Order passed on 20th July 1855, see Commons Journal, volume 110, page 401.

[9] Albert Victor Alexander, later the 1st Earl Alexander of Hillsborough. Only one more person who was not a member of the Royal Family,  the Earl of Stockton, has been created an Earl since.

[10] As he then was. Later he retired as Commander Rupert Arnold Brabner, D.S.O., D.S.C., R.N., and was also a confirmed flying ace.

[11] Commons Hansard, volume 387,  column 611

[12] As he then was. Later to be Prime Minister, and later still was created Earl of Avon. His widow, the Countess of Avon (and née Spencer-Churchill too) is still alive - our past is so very often among us.

[13] Commons Hansard ibid.

[14] Hansard says this was "Lord Cecil" but I have failed entirely to work out who it actually is. If someone who has access to the bound volumes could check if the online version has just gone wonky I will be most obliged.

[15] Lords Hansard, volume 126, column 421.

[16] Later Robert Arthur James Gascoyne-Cecil, the 5th Marquess of Salisbury, K.G., P.C., D.L., F.R.S., he was at this time sitting by Writ of Acceleration in his father's Barony of Essendon, and was known in the House by his courtesy title of Viscount Cranbourne.

[17] Lords Hansard, ibid. column 423.

[18] ibid., next column.

[19] Commons Hansard, volume 387, column 613

[20] This is Brigadier Sir Charles Howard, G.C.V.O., D.S.O. In 1957, the then Lord Privy Seal moved that the House ask the then Speaker to convey the House's admiration for him on his retirement, see Commons Hansard, volume 563, columns 53-5. He served the House from October 1935 to January 1957.

[21] ibid., column 693

[22] This is Edward Turnour, the 6th Earl Winteron. Winterton being a title in the Peerage of Ireland, it did not come with a seat in the House of Lords, and consequently he was able to be elected an MP. Winterton became Father of the House in 1945.

[23] ibid, column 698

[24] Actually a pair of motions, one to consider the message forthwith and another to reply.

[25] At the time, William Boulton DL MP, the member for Sheffield Central. In 1944 he was created Sir William Whytehead Boulton, Baronet.

[26] London Gazette, issue 36002, page 2011, 4th May 1943

[27] And I have always found this an admixture of curious and a bit silly.

[28] This was changed by the Peerage Act 1963 (cap. 48)